6.11Under this proposal, plaintiffs would retain the right to seek the full amount from a single liable defendant from the outset. But if one liable defendant has paid more than their court-ordered contribution after all rights to contribution have been exhausted, that defendant may apply for supplementary contribution orders to spread the “overpayment” between itself and other solvent defendants (and also third parties that the court has previously held liable to contribute to one or more defendants). Such subsequent orders would only allocate responsibility for the unallocated share – there would be no impact on or revisiting of any original orders for contribution. The court should normally allocate liability to make supplementary contributions in proportions that reflect the relative shares of responsibility among the remaining solvent parties – the first-called defendant and the other defendants from whom supplementary contribution is sought.
6.13This achieves a more just end result between solvent defendants without requiring the plaintiff to pursue separate judgments or return to court at any stage. The outcome will be more certain and predictable for defendants, and less arbitrary for those with deep pockets. It retains all advantages of joint and several liability for plaintiffs but deals more fairly with the issues that arise when one or more defendants are unable to pay.
6.14The result should be more predictable outcomes for defendants and so better prospects for resolving respective obligations by agreement. If a well-resourced defendant has the option and grounds to apply for a subsequent contribution order, this may be enough to encourage another solvent defendant to pay or negotiate regarding their share, without incurring further costs.
R6 The rules of contribution should be extended to allow a defendant required to pay all or part of a share of liability left unpaid by another defendant, to apply for supplementary contribution from other solvent defendants or judgment debtors. A court or tribunal ordering supplementary contribution should do so by ordering contributions proportionate to the shares of responsibility of each solvent party, including the applicant.
R7 The additional rule should be modelled on proposed section 17 of a draft Civil Liability and Contribution Bill appended to the Law Commission’s Report, Apportionment of Civil Liability, and added, with all necessary modifications, to the existing provisions governing contribution in section 17 of the Law Reform Act 1936.